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Artificial Intelligence -The DABUS Decisions

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Jane Lambert

According to The Artificial Inventor Project website's FAQ page, "DABUS" stands for "Device for Autonomous Bootstrapping of Unified Sentience".  The "About the Team" page of the same website states that DABUS was created by Dr Stephen L Thaler.  Dr Thaler has applied for European patents for two inventions that were invented by DABUS, namely a food container (application number 18275163) on 17 Oct 2018 and devices and enhanced devices and methods for attracting enhanced attention (application number 18275174) on 7 Nov 2018.

In Artificial Intelligence and Intellectual Property27 Dec 2019 I mentioned a press release dated 20 Dec 2019 stating that the EPO had refused those patent applications (see EPO refuses DABUS patent applications designating a machine inventor20 Dec 2019). The press release added:

'After hearing the arguments of the applicant in non-public oral proceedings on 25 November the EPO refused EP 18 275 163 and EP 18 275 1…

Trade Marks - Red Bull GmbH v Big Horn UK Ltd and Others

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Jane Lambert

Chancery Division (Kelyn Bacon QC) Red Bull GmbH v Big Horn UK Ltd and others [2020] EWHC 124 (Ch) (30 Jan 2020)

This was a claim by Red Bull GmbH against Big Horn UK Ltd. and its sole director Lyubomir Enchev. for infringement of the following European trade marks: EU003629342, EU000052746 and EU001564301  Red Bull complained that the defendants had distributed a drink in Bulgaria and the UK that has been manufactured by a Polish company under the signs that appear in the right-hand column of the table in paragraph 6 of the transcript.  The action came on for trial before Kelyn Bacon QC between 15 and 17 Jan 2020. The learned deputy judge gave judgment to the claimant on 30 Jan 2020.

Red Bill alleged that Big Horn and Mr Enchev had infringed its rights under art 9 (2) (b) and (c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance) OJ L 78, 24.3.2009, p. 1–42  In respect of the claim under art …

Copyright: Response Clothing Ltd v The Edinburgh Woollen Mill Ltd

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Jane Lambert

Intellectual Property Enterprise Court (HH Judge Hacon) Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC) (29 Jan 2020)

This was an action for infringement of copyright.  The questions that His Honour Judge Hacon had to decide were whether copyright could subsist in the wave design fabric appearing in Annex 1 to his judgment in Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 and, if so, whether it had been infringed by the sale of tops made from the fabrics shown in Annexes 3 to 6. The learned judge answered both questions in the affirmative.  By so doing, he boldly departed from the decision of the House of Lords in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64. [1975] RPC 31 and offered his own interpretation of the words "a work of artistic craftsmanship" in s. 4 (1) (c) of the Copyright, Designs and Patents Act 1988.

The claimant is a company based in Oswaldtwistle that designs and market…

Search Orders - TBD (Owen Holland) Ltd v Simons and Others

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Chancery Divison (Mr Justice Marcus Smith) TBD (Owen Holland) Ltd v Simons and others [2020] EWHC 30 (Ch) (17 Jan 2020)

Jane Lambert

In Anton Piller KG v Manufacturing Processes Ltd. and others[1976] Ch 55, [1975] EWCA Civ 12, [1976] 1 All ER 779, Lord Denning MR noted that the judges of the Chancery Division had recently been making orders of a kind not known before whereby the plaintiff and his solicitors were authorized to enter the defendant's premises so as to prevent the loss or destruction of evidence, provided that the defendant gave them permission to enter.  Such orders were then made under the inherent jurisdiction of the court and were not covered by the Rules of the Supreme Court so it fell to the Court of Appeal to consider them on principle. It seemed to Lord Denning that such an order could be made by a judge without notice to a defendant, but it should only be made where it was essential for justice to be done. If the defendant were forewarned, there would be a gra…

Practce - Koninklijke Philips NV v Asustek Computer Inc. and others

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Jane Lambert

Patents Court (Mt Justice Marcus Smith) Koninklijke Philips NV v Asustek Computer Inc and others  [2020] EWHC 29 (Ch) (17 Jan 2020)

This was an application by Asustek Computer Inc. and its subsidiaries, Asustek (UK) Ltd. and Asus Technology Pte Limited. for an order that they cease to be parties to proceedings to determine the terms upon which Koninklijke Philips NV ("Philips") should offer licences to use its patents that are essential for compliance with standards set by the European Telecommunications Standards Institute ("ETSI"}. The application first came before Mr Justice Marcus Smith on 27 Nov 2019.  In Koninklijke Philips NV v Asustek Computer Inc. and others [2019] EWHC 3463 (Pat) (27 Nov 2019) he decided to hear the application on 13 Dec 2019.  He dismissed the application on 17 Jan 2020 in Koninklijke Philips NV v Asustek Computer Inc. and others [2020] EWHC 29 (Ch) (17 Jan 2020).

The reason for the application was that the Asustek companies …

Trade Marks and Passing Off - easyGroup Ltd v EasyFly

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Jane Lambert

Chancery Division (Mr Justice Nugee) easyGroup Ltd. v Empresa Aerea De Servicios y Facilitation Logistica Integral SA (Easyfly SA) and others [2020] EWHC 40 (Ch) (14 Jan 2020)

This was an action by easyGroup Ltd. against the Colombian airline Empresa Aerea de Servicios y Facilitation Logistica Integral SA which trades in the name or style of EasyFly and its president Alfonso Avila Velandia for trade mark infringement, passing off and conspiracy. easyGroup complained that EastFly's website supplied air tickets to British travellers under the EasyFly sign. It also sought to join the French manufacturer, ATR Aircraft, as a third defendant. ATR had flown aircraft in EasyFly's livery on test flights around France and on a delivery mission through Spanish airspace. It had also published a press release announcing its sale of aircraft to EasyFly at the Farnborough airshow.

The proceedings before Mr Justice Nugee were not a trial but a number of interlocutory applications …

Patents - Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd. and Others

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Jane Lambert

Patents Court (Mr Justice Birss) Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd and others [2020] EWHC 14 (Pat) (8 Jan 2020)

This was a patent infringement claim by Conversant Wireless Licensing SARL against Huawei Technologies Co Ltd., ZTE Corporation and their respective British subsidiaries.  The patents alleged to have been infringed are European patents (UK) 1 878 177 ("177"), 3 267 722 ("722") and 3 197 206 ("206"). Conversant had declared those patents to be essential to certain 3G and 4G standards. It argued that manufacturing, distributing or marketing items that met those standards without its licence would necessarily infringe the patents. The defendants contended that the patents were invalid on various grounds and denied that the patents were essential to the standards.

The Trial
The action came on for trial before Mr Justice Birss on 7, 8, 9, 11, 15, 17, 18 and 21 Oct 2019.  His lordship delivered judgment on 8 J…